89th  Congress, 
1st  ^Session. 


[  SENATE.  ] 


[15] 


MEMORIAL 

OP 

THE  PILOTS  OF  THE  POUT  OF  NEW  YORK, 

PRAYING  FOR 

The  repeal  or  modification  of  the  act  of  March  2,  1837,  concerning  pilots. 


December  16,  1845. 
Referred  to  the  Commiitee  on  Commerce,  and  ordered  to  be  printed. 


To  the  honorable  the  Senate  and  House  of  Repre.^entativcs  of  the  people 
of  tlie  United  iStales  of  America  in  Congress  assembled : 

The  memorial  of  the  undersigned,  on  behalf  of  the  pilots  of  the  port 
of  New  York, 
Respectfully  showeth  : 

That  tlfu  number  of  pilots  now  in  commission  for  the  said  port  is 
eighty-five;  that  they  own  thirteen  boats,  which  have  cost  them  from 
six  thousand  five  hundred  to  eight  thousand  five  hundred  dollars  each  ^ 
that  they  have  attached  to  the  said  boats  in  all  sixty  five  hands  and  up- 
wards ;  that  some  of  the  said  pilots  have  been  fifty  years  in  the  said  service, 
and  that  most  of  them  entered  it  when,  by  the  law  of  the  Stale  of  New  York^ 
no  individual  could  become  a  pilot  until  he  had  served  an  apprenticeship  oi 
five  years;  that  this  law  had  been  in  operation  for  nearly  half  a  century, 
and  that  your  memorialists  and  those  whom  they  represent,  trusting  to 
the  protection  of  such  enactment,  have  applied  themselves  to  the  attaining 
such  requisite  knowledge  as  might  entitle  them  to  the  pilot's  branch,  and 
h-ave  served  the  necessary  lawful  apprenticeship,  and  have  invested  their 
money  in  the  purchase  of  boats,  and  are,  in  fact,  interested  in  the  same  to 
the  amount  of  their  whole  worldly  substance.  And  your  memorialists 
represent  further,  that  in  the  year  1837  the  legislature  of  the  State  of  New 
York  passed  an  act  shortening  the  term  of  apprenticeship  to  three  years, 
and  otherwise  modifying  and  altering  the  rules  and  regulations  to  govern 
the  pilot  service  for  the  port  of  New  York.  And  your  memorialists  further 
represent  that,  by  the  twenty  third  section  of  this  act,  "  the  earnings  of 
the  pilots  belonging  to  any  boat"  were  directed  to  be  equally  divided 
among  the  pilots  of  said  boat ;"  and  provision  was  further  made  that  no 
pilot  shall  participate,  unless  authorized  by  the  conmiissioners,  in  the 
earnings  of  any  others  than  those  attached  to  the  same  boat;  and  for  a 
breach  of  this  provision  any  pilot  or  pilots  shall  forfeit  his  or  their  license 
or  licenses." 
Kilctiie  &  Heiss,  prmi. 


[15] 


2 


Your  memorialists  further  represent,  that,  by  the  act  from  which  the 
section  aforesaid  is  quoted,  provision  was  luade  for  ihe  wants  of  the  port 
of  New  York  in  respect  to  pilots,  arising  from  its  increased  connnerce  and 
its  increase  in  time  to  come,  by  empowering  the  commissioners  heretofore 
named  to  administer  the  reqrnsite  oaths  to  |)ilots,  and  to  license  ail  per- 
sons now  licensed  to  act  as  pilots  by  the  way  of  Sandy  Hook,  including 
those  called  deputy  pilots,  as  they  may  deem  competent  after  examination ; 
and  also  every  other  person  of  lull  age  and  good  moral  character  making 
application  theretor."  Your  memorialists  further  represent,  that  by  these 
enactments  all  the  heedom  and  compeiiiion  iu  their  callijjg  desirable  or  con- 
sistent with  a  dne  regard  to  the  lives  and  property  of  their  fellow-citizens 
have  been  secured,  and  the  objections  in  this  respect,  which  were  urged 
at  a  prior  period,  removed.  And  your  memorialists  further  represent,  that, 
on  the  second  day  of  March,  1^37,  the  following  act  of  Congress  was 
passed  :  Be  it  enacted,  That  it  shall  and  niay  be  lawful  for  the  master  or 
commander  of  any  vessel  coming  into  or  going  out  of  any  port  situate 
upon  the  waters  which  are  the  boundary  between  two  States,  to  employ 
any  pilot  duly  licensed  or  authorized  by  the  laws  of  either  of  the  States 
hounded  on  the  said  waters,  to  pilot  any  vessel  to  or  from  said  port,  any 
law,  usage,  or  custom  to  the  contrary  notwithstanding.''  And  your 
memorialists  further  represent,  that  this  act  was  passed  by  both  branches 
of  the  national  legislature  on  the  said  second  day  of  March,  1837,  (that 
being  the  last  day  but  one  of  the  session,)  and  also  under  other  circum- 
stances unfavorable  alike  to  a  calm  judgment  and  a  dispassionate  exa-'iii- 
uation  of  the  rights  of  your  memorialists  under  the  constitution  of  the 
United  States  and  laws  of  the  State  of  New  York. 

And  your  memorialists  further  represent,  that  great  excitement  pervaded 
the  community  at  this  pedod,  growing  out  of  the  destruction  of  life  and 
property  by  the  loss  of  the  ships  Bristol  and  Mexico,  and  thai  these  dis- 
astrous wrecks  were  unjusdy  attributed  to  the  negligence  of  the  body 
with  which  your  memoiialists  are  connected.  Your  memorialists  further 
represent  that  the  fcilsity  of  this  charge  (under  the  belief  and  consequent 
excitement  thereupon  the  act  now  sought  to  be  repealed  was  passed)  has 
been  repeatedly  disproved,  both  by  the  affidavits  of  the  survivors  of  the 
shipv/recks  referred  to,  exonerating  the  pilots  from  the  calumnies  of  which 
they  have  been  made  the  victims,  and  also  by  the  presentment  of  the 
grand  jury  of  New  York,  who,  after  a  patient  examination,  for  the  purpose 
of  ascertaining  how  far  these  shipwrecks  were  attributable  to  any  culpable 
neglect  on  the  part  of  the  pilots,  arrived  at  the  conclusion  that  both  in  the 
case  of  the  Bristol  and  Mexico  these  casualties  might  have  been  avoided 
by  the  exercise  of  a  suitable  degree  of  caution  on  the  part  of  the  officers 
and  crews  of  these  vessels." 

Your  memorialists  further  represent,  that  neither  at  the  period  of  the 
passage  of  the  law  of  the  United  States,  or  of  the  law  of  the  State  of  New 
York  hereinbefore  referred  to,  nor  at  any  previous  period,  had  there  been 
any  question  in  regard  to  the  exclusive  right  of  the  State  of  New  York  to 
legislate  upon  the  pilot  service  connected  with  the  port  and  harbor  of 
ISew  York  ;  that  the  lands  on  both  sides  of  the  said  harbor  are  parcel  of 
and  subject  to  thr  jurisdiction  of  said  State,  and  nearly  all  the  navigation 
in  and  out  of  sai  I  harbor  is  to  and  from  the  said  port  of  New  York  ;  that 
by  the  compact  between  tlie  States  of  New  York  and  New  Jersey,  in 
regard  to  the  territory  and  jurisdiction  of  said  States,  confirmed  by  the 


3 


[15] 


act  of  Congress  of  June  28, 1834,  exclusive  jurisdiction  was  given  to  the 
State  of  INew  York  over  the  waters  of  the  bay  of  New  York,  of  the  Hud- 
son river  west  of  Manhattan  island,  over  the  lands  covered  by  water  to 
Ihe  low  water  mark  on  the  New  Jersey  shore,  over  Bedlow's  and  Elhs* 
islands ;  and  that  by  the  said  compact,  so  ratified  as  aforesaid,  New  Jersey- 
was  excluded  from  any  jurisdiction  over  the  waters  situate  as  aforesaid, 
except  those  flowing  above  low  water  mark  upon  the  New  Jersey  shore. 

Your  memoriahsts  further  represent,  that  the  respective  boundaries  and 
jurisdictions  of  the  said  States  of  New  York  and  New  Jersey,  together  with 
the  unconstitutionality  of  the  act  of  Congress  of  March  2,  1837,  of  which 
your  memoriahsts  complain,  will  more  fully  and  at  large  appear  by  refer- 
ence to  the  memorial  of  the  pilots  of  the  port  of  New  York  to  the  legisla- 
ture of  the  Slate  of  New  York,  and  to  the  message  of  his  excellency  the 
governor  of  said  State  in  transmitting  the  same,  hereunto  annexed.  And 
5^our  memorialists  further  represent,  that  under  the  act  of  Congress  of 
March  2,  1837,  a  board  of  pilot  commissioners  has  been  established  in  the 
State  of  New  Jersey  ;  that  a  number  of  pilots  are  now  in  commission  from 
the  said  Stale,  engaged  in  piloting  vessels  in  and  out  of  the  port  and  har- 
bor of  New  York ;  which  is,  as  your  memorialists  respectfully  submit, 
unjust  and  oppressive  to  the  pilots  of  the  port  of  New  York,  detrimental 
to  the  navigation  in  and  out  of  said  port,  and  an  interference  with  the 
legislation  of  the  State  of  New  York  as  the  same  has  been  exercised 
without  dispute  for  upwards  of  half  a  century. 

And  your  memorialists  represent,  in  support  of  said  assertion,  firstly, 
that  by  the  said  act  of  Congress  a  body  of  men  who  have  entered  a  pro- 
fession laborious  in  itself  and  requiring  a  long  and  rigorous  probation, 
and  have  expanded  their  prime  of  life  and  neglected  all  other  opportu- 
nities of  gaining  a  livelihood,  trusting  to  the  protection  of  their  State*  laws 
in  a  matter  where  State  jurisdiction  had  never  been  questioned  by  the 
general  government;  who  have  incurred  expenses  and  educated  families 
upon  the  faith  of  their  regular  earnings  under  such  laws  ;  who  are,  many 
of  them,  now  old  and  worn  out  in  ^he  service  and  totally  unfit  for  any 
other  employment,  having  large  families  dependent  upon  them  for  sup- 
port, find  themselves  suddenly  deprived  of  their  occupation  by  a  body  of 
men  who  have  served  no  apprenticeship,  invested  no  money,  and  are 
irresponsible,  in  most  instances,  either  as  to  reputation  or  property.  And 
your  memorialists  represent,  that  all  of  the  New  York  pilots,  excepting 
twenty  five,  were  branch  pilots  before  the  act  of  Congress  complained  o^ 
and  that  the  twenty-five  referred  to  had  served  their  apprenticeship;  and 
they  respectfully  protest  against  an  enactment  which  nullifies  the  juris- 
diction of  the  State  of  New  York  as  to  the  interests  of  her  citizens  to  the 
emoluments  of  individuals  inhabiting  a  neighboring  State. 

And  your  memorialists  further  show  in  illustration,  that  the  New  Jersey 
pilots  are  admitted  without  apprenticeship;  and  that  in  consequence  of 
such  facility,  as  your  memorialists  are  prepared  to  prove,  persons  adjudged 
incompetent  by  the  New  York  board  of  pilot  commissioners  have  pro- 
cured licenses  from  the  State  of  New  Jersey,  to  the  manifest  prejudice,  as 
your  memorialists  submit,  of  foreign  and  inward  bound  vessels,  who  can- 
not be  supposed  to  distinguish  between  a  good  pilot  and  an  ignorant  one, 
and  which  may  be  commuted  at  any  time,  owing  to  such  a  state  of  things, 
io  the  care  of  ignorant  and  unskilful  persons,  who,  tempted  by  the  rates 
of  pilotage  as  they  have  been  fixed,  upon  the  understanding  that  a  pilot  is 


r  15  ]     'c^h^^  4 

to  serve  an  apprenticeship,  may  assume  to  belong  to  a  profession  for  which 
they  are  not  qualified,  and  endanger  life  and  property  in  the  confidence 
that  they  cannot  be  made  answerable  therefor. 

Your  memorialists  respectfully  suggest,  that  the  idea  of  throwing  the 
business  open  to  competition,  which  has  procured  the  passage  of  the 
present  law,  ought  to  be  received  with  the  following  qualification, namely^ 
that  no  one  should  be  allowed  to  enter  a  calling  which  is  to  involve  the 
security  of  life  and  property  of  others,  without  some  securily  given  that 
the  public  shall  be  safe.  In  all  professions  where  the  skilfulness  and  un- 
skilfulness  of  the  practitioner  will  operate  to  his  own  loss  or  emolument 
merely,  competition,  of  course,  will  insure  diligence;  but  your  memo- 
rialists submit,  that  if  the  profession  of  medicine  or  law  were  thrown  open 
to  competition,  and  the  unlearned  or  the  patient  obliged  to  receive  the 
first  physician  or  attorney  who  oftered  his  services,  such  a  law  would  at 
once  be  condemned  as  arbitrary  and  unwise;  and  yet  such  is  the  eflfect 
of  the  present  act  of  Congress.  A  captain  of  a  foreign  vessel  coming  to 
the  port  of  New  York  is  obliged,  by  law,  to  take  the  first  pilot  who  ofterSj 
and  he  has  no  securily  that  the  pilot  so  offering  is  fit  to  be  trusted,  either 
from  knowledge  or  habits. 

And  your  memorialists  humbly  submit,  that  justice,  and  a  due  regard  to 
the  interests  of  all  parties,  demand  that  the  present  act  of  Congress  in  re- 
lation to  the  pilots  of  the  port  of  New  York  shou'd  be  repealed  or  modi- 
fied in  such  manner  as  the  interests  of  the  public,  the  rights  of  individuals, 
and  the  integrity  of  State  rights  require;  all  which  is  respectfully  sub- 
mitted to  your  lionorable  body  as  being  no  more  than  the  rights  of  the 
State  of  INew  York  and  her  citizens  require. 

And  your  memorialists  further  represent,  that  a  petition  was  presented 
to  the  House  of  Representatives  in  1842,  in  which  the  difficulties  of  navi- 
gating the  Mississippi  and  Ohio  rivers  were  fully  set  forth,  and  in  which 
the  frequent  accidents  occurring  from  the  employment  of  incompetent  per- 
sons as  pilots  were  also  stated.  The  petitioners,  therefore,  prayed  for  the 
passage  of  a  law  by  Congress  regulating  the  pilotage  of  steamboats  upon  said 
rivers.  And  your  memorialists  further  represent,  that  this  petition  was  re- 
ferred to  the  Committee  on  Commerce,  who,  after  a  due  consideration  of 
the  subject,  reported  that,  in  their  opinion,  "  the  subject  should  be  left,  as  it 
always  had  been,  to  the  legislatures  of  the  States,  whose  powers  in  rela* 
tion  to  it  are  ample,  and  who  have  convenient  access  to  that  local  informa- 
tion which  is  indispensable  to  enlightened  legislation  upon  a  matter  in- 
volving the  right?  and  interests  of  several  classes  of  citizens."  And  your 
memorialists  further  represent,  that  there  exists  at  this  time  no  law  of  the 
Slate  of  [New  York  for  the  governojent  of  the  pilot  service  required  with- 
in the  jurisdiction  of  the  said  State,  the  same  having  been  repealed  during 
the  present  year;  and  that  there  is  now  no  other  regulation  of  the  said 
service,  except  the  loose  and  indefinite  act  of  Congress  of  March  2,  1837. 

Your  memorialists  further  represent,  that  some  further  legislation  in  ad- 
dition to  the  said  act  is  necessary,  both  for  the  protection  of  the  rights  of 
your  memorialists  and  the  interests  of  the  public  ;  and  that  this  necessity  is 
rendered  evident  from  the  fact  that  a  self  constituted  body  of  individuals 
in  the  city  of  New  York  have  organized  themselves  into  aboard  of  pilot 
commissioners,  for  the  purpose  ot  examining  and  issuing  certificates  and 
licenses  to  pilots;  that  this  board  consists  of  five  persons,  one  of  whom  is 
chosen  by  the  honorable  the  Secretary  of  the  Navy,  under  what  law  or 


5 


[15] 


ty  what  authority  your  memorialists  have  been  unable  to  ascertain ;  and 
that  the  object  of  said  board,  as  stated  in  its  published  constitution  and 
rules,  is  "to  prevent  improper  persons  from  acting  as  pilots,  deeming  it 
important  to  the  interests  of  humanity  and  commerce." 

And  yonr  memorialists  further  represent,  and  humbly  submit  to  your 
honorable  body,  that  this  object,  in  which  the  whole  community  are  in- 
terested, cannot  be  attained  under  the  system  and  regulations  above  re- 
ferred to  by  your  memorialists ;  tluit  destruction  of  property  has  already 
occurred  in  consequence  of  the  incompetency  of  persons  assuming  to  act 
as  pilots  without  the  previous  training  and  practical  acquaintance  with  the 
waters  of  the  harbor  and  port  of  New  York  of  your  memorialists ;  that  a 
.state  of  confusion  in  the  pilot  service,  better  conceived  than  described,  has 
arisen  from  the  want  of  that  proper  and  undisputed  regulation  which  had 
existed  for  half  a  century  ;  some  persons  acting  under  licenses  granted  by 
ihe  State  of  New  Jersey;  some  from  licenses  gr<.nted  by  the  selfconsti- 
UUed  board  of  commissioners  already  referred  to  by  your  memorialists ; 
some  acting  under  old  commissions,  and  some  without  any  pretence  of 
authority  whatever. 

Your  memorialists,  therefore,  humbly  pray,  that  the  Congress  of  the 
United  States  may  terminate  a  state  of  things  so  injurious  to  the  interests 
of  the  community,  either  by  the  repeal  of  the  huv  of  March  2,  1837,  and 
ihe  leaving  of  the  regulation  of  the  pilot  service  to  the  States  respectively, 
or  by  such  further  legislation  as  shall  make  the  act  aforesaid  general  in  its 
operation,  and  remove  the  objections  aad  remedy  the  evils  hereinbefore 
set  forth  by  vour  memorialists. 

JNO.  MAGINN, 
Prest.  N.  Y.  P.  Association. 

Edwd.  Hdpe,  Secretary. 


STATE  OF  NEW  YORK. 
In  Senate,  February  6,  1845. 

Message  from  the  Governor.,  transmitting  a  memorial  from  the  pilots  of 

New  York, 

Executive  Chamber,  Albany.  February  1845. 

7b  the  Lpgislatiire : 

I  herewith  transmit  a  memorial  from  the  pilots  of  New  York,  which 
has  been  placed  in  my  hands  by  a  committee  from  the  body  of  the  pilots, 
with  a  request  that  I  would  cause  it  to  be  laid  hefore  the  legislature,  and 
invoke  its  consideration  (^f  the  subject  of  it.  1  deem  it  but  just  to  that 
class  of  public  commercial  agents  to  comply  with  their  request. 

Without  entering  upon  the  discussion  of  the  question  as  to  how  far 
the  constitution  of  the  United  States  has  made  the  regulation  of  pilots 
and  pilotage  one  of  federal  or  of  State  jurisdiction,  it  is  sufficient  for 
my  purpose  to  remark,  that  the  only  action  of  Congress  upon  the  subject^ 
from  the  establishment  of  the  federal  government  up  to  the  year  1837, 
was,  by  a  law  passed  on  the  7ih  day  of  August,  17 89,  to  refer  the  whole 
matter  to  the  legislation  of  the  States,  until  its  further  action. 


[15] 


6 


The  loss  of  a  couple  of  vessels,  with  numerous  lives,  in  or  near  the 
harbor  of  New  York,  during  the  early  part  of  ihe  winter  of  1836-'37, 
gave  rise  to  many  and  aggravated  charges  of  negligence  and  abuse  against 
the  New  York  pilots  ;  and  an  appHcation  was  made  to  Congress  to  inter- 
fere, by  what  was  claimed  to  be  its  proper  constitutional  authority,  and 
break  up  what  was  charged  as  a  monopoly  etijoyed  by  those  pilotSy 
under  the  then  existing  State  law,  leading  to  the  negligence  and  abuses 
complained  of.  ♦ 

Congress  did  interfere,  and,  on  the  third  day  of  March,  1837,  passed  a 
law  declaring  that  "it  shall  and  may  be  lawful  for  the  master  and  com- 
mander of  any  vessel  coming  into  or  going  out  of  any  port  situated  upon 
waters  which  are  the  boundary  between  two  States,  to  employ  any  pilot 
duly  licensed  or  authorized  by  the  laws  of  either  of  the  States  bounded 
by  said  waters,  to  pilot  any  vessel  to  or  from  said  port,  any  law,  usage,  or 
custom  to  the  contrary  notwithstanding." 

Long  before  the  establishment  of  the  federal  government,  the  State  of 
New  York,  as  a  colony  and  as  a  State,  had  made  the  pilotage  of  the  port 
of  New  York  a  subject  of  legislative  regulation,  and  after  that  time  up  to 
the  passage  by  Congress  of  the  act  of  lh37,  before  referred  to,  it  had  been 
subject,  and  only  subject,  to  its  exclusive  legislation.  This,  with  the 
extensive  and  constantly  increasing  commerce  of  that  port,  had  naturally 
raised  up  a  body  of  pilots,  who  m-ide  piloting  vessels  into  and  out  of  that 
port  their  profession  or  calling,  and  who  depended  upon  that  business  for 
the  support  of  themselves  and  their  families.  The  rigid  provisions  in  refer- 
ence to  their  qualifications  and  skill,  which  had  for  a  long  term  of  years 
characterized  our  legislation  upon  the  subject,  had  made  it  a  profession 
difficult  and  expensive  in  the  acquirement,  and  it  was  the  policy  of  those 
laws  to  give  it  commensurate  value,  by  confining  the  business, as  in  other 
professions,  to  pilots. duly  and  legally  licensed.  I  believe  I  may  say  that, 
as  a  body  of  men,  during  all  this  period,  the  pilots  of  the  port  of  New  York 
would  bear  a  favorable  comparison  with  the  pilots  of  any  other  port  in  the 
Union,  or  in  the  world,  whether  as  to  their  fidelity  and  skill  as  pilots,  or 
their  patriotism  or  respectability  as  citizens. 

The  unfortunate  loss  of  the  vessels  referred  to,  at  New  York,  in  l836-'37j 
produced  great  excitement  throughout  the  country,  and  the  blame  was 
charged  upon  the  pilots  of  that  port.  It  was  charged  that  the  monopoly  they 
enjoyed  of  the  business  of  piloting  vessels  had  made  them  negligent 
and  indifferent,  and  that  the  pilot  stations  were  not  properly  or  faithfully 
supplied  during  the  inclement  and  dangerous  seasons  of  the  year. 

Acting  under  the  impression  that  these  charges  were  justly  made  against 
the  pilots,  as  is  believed.  Congress  passed  the  law  of  1837  which  ha? 
been  quoted,  having  for  its  object  to  introduce  competition  from  the  ad- 
joining State  of  New  Jersey,  to  break  up  the  supposed  injurious  monopoly, 
and  to  secure  vigilance  on  the  part  of  the  pilot* 

It  cannot  fail  to  be  seen  that  this  legislation  on  the  part  of  Congress 
was  very  partial  in  its  application,  only  affecting  the  p  lots  of  those  ports 
and  harbors  the  waters  of  which  embraced  a  boundary  between  States. 

No  portion  of  the  pilots  of  many  entire  States  were  at  all  affected  by  it. 
and  only  those  employed  at  particular  ports  in  any  State.  This  mode  of 
exercising  a  federal  power,  within  the  limits  of  the  constitution,  has  been 
broadly  questioned.  The  power,  if  it  be  federal,  is  universal  and  equal 
over  the  whole  Union,  and  if  put  in  exercise  at  all,  it  may  well  be  ques- 


7 


tioncd  whether  that  exercise  should  not  also  be  universal  and  equal.  The 
latitude  of  a  harbor,  the  depth  of  its  water,  or  the  number  of  its  islands, 
might,  it  appears  to  me,  be  made  the  rule  of  application,  with  as  much 
show  of  principle  as  the  fact  that  a  boundary  between  Slates  passes 
through  it. 

So  also  the  principle,  that  Congress  can  make  a  law  of  one  State  oper- 
ate in  another,  or  give  to  a  license  granted  by  the  anthoriiy  of  one  State 
force  in  another,  appears  to  me  to  be  equally  unsound  and  dangerous.  It 
is  assuming  that  Congress  may,  as  a  mode  of  exercising  a  federal  power, 
adopt  the  legislation,  existing  or  prospective,  of  tlie  States,  and  give  to  it 
federal  extension  and  supremacy,  instead  of  legislating  itself  to  carry  the 
power  into  effect.  These  objections  appear  to  me  to  exist  against  the  law 
of  Congress  of  1837,  without  questioning  the  full  power  of  Congress  to 
legislate  itself  as  to  the  whole  subject  of  pilots  and  pilotage — a  power  the 
existence  of  which  it  is  not  my  purpose  to  admit  or  deny  upon  this  oc- 
casion. 

The  same  casualties  which  awakened  the  attention  of  Congress  to  this 
subject,  also  excited  the  legislation  of  the  State  to  investigation  and 
action  upon  the  same  subject. 

The  result  of  the  investigation  instituted  was  to  show,  as  I  believe,  to 
the  satisfaction  of  all,  and  to  produce  the  universal  admission,  that  the 
charges  against  the  New  York  pilots  were  wholly  unfounded,  and  that 
the  loss  of  the  vessels  was  in  no  way  attributable  to  any  negjigence  or 
fault  on  (heir  part.  This  disposed  of  the  ground  upon  which  Congress 
was  undoubtedly  induced  to  attempt  this  partial  exercise  of  its  authority 
over  the  subject  of  pilotage. 

The  State  legislation  consequent  upon  this  excitement  of  feeling  was 
an  entire  n^.w  law  for  the  licensing  and  govermnent  of  the  pilots  of  the 
port  of  New  York,  which  was  passed  on  the  I2.th  day  of  April,  1837, 
but  little  more  than  a  month  after  the  passage  of  the  law  of  Congress  of 
that  year.  This  law  opened  materially  the  regulations  for  licensing  t»ilots, 
and  increased  the  restruints  and  responsibilities  upon  those  who  should 
take  a  license  and  enter  upnn  the  business;  while  the  monopolizing  fea- 
tures of  the  former  laws  were  entirely  removed,  and  the  fullest  competition 
opened  and  invited  between  the  pilots  attached  to  every  different  pilot 
boat.  The  terms  of  appr.*nticeship  necessary  to  entitle  the  apprentice 
to  a  license  were  materially  shortened,  and,  nt  the  discretion  of  the 
commission  constituted,  p  rsons  who  had  se:"ved  no  apprenticeship 
could  be  licensed  upojj  examination.  Every  pilot's  license  was  to  be  re- 
newed annually ;  every  pilot  was  to  give  a  bond  with  sureties,  to  be 
forfeited  and  paid,  in  case  his  carelessness,  or  want  of  skill,  should  damage 
the  vessel  or  property  entrtisted  to  his  care,  and  rigid  provisions  were 
enacted  for  the  constant  ocrupation  and  supply  of  the  pilot  stations,  in 
which  every  boat  was  to  take  its  regular  turn.  Other  provisions  of  a 
rigid  and  onerous  character  upon  the  New  York  pilots  are  also  found 
throughout  this  law,  and  tlie  charges  for  piloting  every  vessel  in  or  out 
of  the  port  are  specifically  fixed. 

'J'he  pilots  cheerf  illy  accepted  of  the  terms,  and  energetically  entered 
upon  their  dirticult  and  datigenuis  duties  under  the  new  law,  and  soon 
found  others— strangers  to  theoj,  to  the  law  of  their  Slate,  and  free  from 
its  restrictions  and  n?sponsibilities — acting  as  their  competitors.  If  they 
attempted  to  enforce  against  these  competitors  the  prohibitions  of  the  law 


[15] 


8 


of  the  State,  the  act  of  Congress  of  1837,  and  a  license  from  a  neigh- 
boring State,  were  interposed,  and  proved  to  be  effectual  exemptions 
before  the  municipal  courts.  In  this  way,  pilots  who  were  under  no  obli- 
gation to  supply  the  pilot  stations,  had  given  no  bond,  had  served  no 
apprenticeship,  had  undergone  no  examination,  and,  restrained  by  no  legal 
regulation  of  charges,  were  f  )und  to  occupy  a  position  of  equality  with 
them,  at  their  own  docks  and  in  their  own  harbor. 

Nor  were  they,  as  a  universal  or  even  a  general  rule,  citizens  or  inhah- 
-  itants  of  another  Siate,  but  residents  of  the  same  city  with  themselves, 
who,  having  taken  license  from  another  State,  were  entirely  at  liberty  to  be 
pilots  in  fair  weather  and  landsmen  in  foul,  if  that  should  be  their  pleasure 
—entirely  at  liberty  to  follow  the  profession  of  pilots  during  those  por- 
tions of  the  year  when  the  hazards  are  least  and  commerce  is  most  full, 
and  to  leave  the  stations  to  the  regularly  hcensed  pilots  of  the  State  at  all 
other  times,  in  case  they  should  find  that  course  most  pleasant  or 
profitable. 

Such  has  continued  to  be  the  state  of  things  since  the  passage  of  the 
act  of  Congress  of  18  )7,and  the  State  law  of  the  same  year ;  and  it  ap- 
pears to  me  that,  under  regulations  so  unequal,  the  ^ew  York  pilots  have 
just  cause  for  complaint.  They  claim  that  either  the  law  of  Congress 
should  be  repealed,  and  all  the  pilots  of  the  port  subjected  alike  to  the 
provisions  and  restrictions  of  the  State  law,  or  that  the  restrictions  of  the 
State  law  should  be  removed  from  them,  and  they  left,  like  the  pilots  who 
carry  the  licenses  of  other  States,  under  the  simple  enactment  of  the  law 
of  Congress.  To  my  mind  this  demand  seems  to  be  just,  and  1  know  of 
HO  body  to  which  our  own  pilots  can  so  properly  appeal  to  do  them  this 
justice,  as  to  the  legislature  of  their  own  State. 

The  i\ew  York  pilots  have,  for  years,  applied  in  vain  to  Congress  to  re- 
peal its  law,  and  now  they  come  to  their  own  legislature  and  ask  of  it  to 
lend  them  its  weight  in  the  renewal  of  that  application,  or  to  so  modify 
its  own  legislation  as  to  place  them  upon  an  equality  with  others,  under 
the  law  of  Congress.  My  own  impression  is,  that  if  the  legislature 
should  consider  it  wise  and  proper  to  invoke  the  attention  of  Congress 
to  the  inequality  and  injustice  caused  by  the  law  of  1837,  and  to  the 
dangers  to  the  commerce  of  the  port  of  New  York  of  a  repeal  of  the 
State  law,  and  an  abandonment  of  all  the  pilots  of  the  port  to  the 
loose  and  indefinite  regulations  of  the  act  of  Congress,  the  consequence 
would  be  a  repeal  of  that  act,  leaving  again  the  whole  subject  to  the  reg- 
ulation of  the  legislature  of  the  State,  where,  for  about  half  a  century 
after  the  adoption  of  the  federal  constitution,  it  so  safely  reposed.  In  any 
event,  I  think  the  petitioners  entitled  to  the  careful  attention  of  the  legis- 
lature, and  respectfully  request  ihat  attention  for  them. 

The  memorial  is  acconjpanied  by  an  argument  of  the  questions  of 
principle  which  the  petitioners  suppose  to  be  involved  in  their  applica- 
tion, and  I  take  lea\e  to  present  it  to  the  legislature,  with  their  petition. 

SILAS  WRICHT. 


9 


[15] 


MEMORIAL. 

In  presenting  the  annexed  memorial,  the  pilots  of  New  York  snbmit 
the  following  considerations  to  the  legislature,  expecting  to  establish  that 
the  aci  of  Congress  of  the  4th  of  March.  1S37,  is  a  manifest  infraction  of 
the  federal  compact,  impairing,  if  not  effectually  nndermining,  the  sove- 
reignty of  the  States. 

The  course  of  legislation  by  tlie  Federal  and  State  governments  has 
placed  this  subject  in  a  condition  of  confusion  and  disorganization  wholly 
incompatible  with  the  importance  of  it. 

The  power  of  the  federal  government  to  legislate,  arises  from  the  ex- 
clusive grant  in  the  constitution  that  Congress  shall  "regulate  commerce 
with  fl>reign  nations,  and  among  the  several  States,  and  with  the  Indian 
tribes 

The  States  exercise  the  same  power  of  legislation  under  their  acknowl- 
edged rights  to  regulate  their  police,  their  domestic  trade,  and  to  govern 
their  own  citizens. 

It  would,  therefore,  appear  that  the  government  of  pilots  is  one  of  those 
subjects  over  which  the  United  States  and  the  individual  States  must,  of 
necessity,  exercise  concurrent  or  co-ordinate  jurisdiciion.  The  States, 
under  our  political  system,  may  exercise  their  imperfect  right  until  it 
comes  practically  in  collision  with  the  actual  exercise  of  the  same  con- 
gressional power.  As  soon  as  such  collision  occurs,  the  right  of  the  State, 
being  subordinate  to  that  of  Congress,  must  be  surrendered,  and  yield  to 
the  more  absolute  power,  under  the  sixth  article  of  the  constitution  of  the 
United  States.  "This  constitution,  0/?^/  the  laics  of  the  United  ^States 
which  shall  be  wade  in  j)in\siwiice  thf^reof,  and  all  treaties  made,  or 
which  shall  be»made  under  the  authority  of  the  United  States,  shall  he 
ihe  sujfrernH  law  of  the  land.^^ 

It  is  well  known  that,  under  the  confederation,  the  regulation  of  com- 
merce was  committed  t(>  the  respective  States,  each  f )r  itself;  and,  in  the 
exercise  of  it,  and  the  acknowledged  rights  of  sovereignty,  the  States  re- 
spectively, as  necessity  required,  adopted  a  pilot  system  coextensive  with 
their  territorial  limits,  and  on  the  high  seas. 

At  the  first  session  of  Congress,  begun  and  held  at  the  city  of  New 
York  Oil  Monday,  the  4th  of  March,  1789,  (the  first  day  the  constitution 
commenced  its  operation.)  Congress  was  employed  in  filling  out,  by  legis- 
lation, the  distributed  grants  which  became  the  subjects  of  its  jurisdic- 
tion ;  and,  on  the  7th  of  August  following,  passed  an  act  adopting  the 
pilot  systems  of  the  several  States  in  the  Union,  in  general  terms  :  "  That 
all  pilots  in  the  bays,  rivers,  inlets,  harbors,  and  ports  of  the  United  States, 
shall  continue  to  be  regulated  in  conformity  with  the  existing  laws  of  the 
States  respectively  irheiein.  such  pilots  way  be,  or  with  such  laws  a«!  the 
States  may  respectively  hereafier  enact  for  the  puipose,  until  future  legis- 
lative provi^ion  by  Congress."  By  that  act,  the  laws  of  the  States  were 
engrafted  on  the  legislative  code  of  the  federal  government  for  the  regu- 
lation of  pilots;  and,  in  virtue  of  the  prospective  authority  of  that  act, the 
State  of  New  York  continued  to  legislate  on  the  subject  until  as  recently 
as  the  12th  of  April,  1 837— without  interruption  until  the  4th  of  March, 
^837— a  period  of  about  fifty  years. 

The  disasters  during  the  winter  of  1837  suggested  to  Congress  the  ne- 
cessity of  providing  more  adequate  laws,  to  prevent  the  recurrence  of  3imi- 


[15] 


10 


lar  misadventures.    To  accomplish  that  object,  on  the  4th  of  March  aa 

act  was  passed,  consisting  of  a  single  section,  in  the  following  w^rds: 
"  An  act  concerning  pilots.  I3e  it  enacted,  that  it  shall  and  may  be  lawful 
for  the  master  or  commander  of  any  vessel  coming  into  ox  going  out  of 
any  port  situate  upon  waters  which  are  the  boundary  between  two  States, 
to  employ  any  pilot  duly  licensed  or  authorized  by  the  laws  of  either  of 
the  States  bounded  on  the  said  waters,  to  pilot  any  vessel  to  or  from  said 
port,  any  law,  usage,  or  custom,  to  the  contrary  notwithstanding."  hi 
the  exercise  of  the  sovereign  political  power  of  this  State,  laws  have  been 
enacted  for  the  licensing  and  government  of  pilots  of  the  port  of  New 
York,  requiring  those  appointed  not  alone  to  possess  suitable  qualitication. 
but  to  furnish  sufficient  security  for  the  faithful  discharge  of  their  appro- 
priate duties  ;  likewise  visiting  delinquency  and  misconduct  with  pains 
and  penalties.  Confiding  in  the  protection  implicitly  guarantied  on  the 
faith  of  this  State,  they  invested  their  fortunes  in  the  purchase,  building, 
and  equipment  of  vessels  necessary  for  the  efficient  execution  of  their 
office,  when  precipitate  legislation  opened  the  enjoyment  of  the  exclusive 
privileges  conferred  on  them  to  the  citizens  of  an  adjoining  State,  to  be 
exercised  within,  the  territorial  confines  of  their  own.  It  is  not  that  Con- 
gress has  legislated  within  its  appropriate  sphere  that  they  complain,  but 
that  in  such  legislation  its  constitutional  authority  has  been  transcendedj 
and  the  sovereignty  of  their  State  has  been  invaded,  to  their  exclusive 
prejudice. 

It  is  admitted  that  the  regulation  of  commerce  includes  that  of  naviga- 
tion, and  that  the  authority  of  Congress,  though  limited  to  specified  ob- 
jects, is  plenary  as  to  those  objects;  but  it  is  denied  that  the  sovereignty 
of  Congress  permits  an  invasion  of  the  sovereignty  of  a  State  in  matters 
known  and  acknowledged  to  pertain  to  State  sovereignty.  Had  Congress 
assumed  the  task  of  regulating  the  pilot  system  in  all  its  branches;  had 
it  conferred  on  the  Executive  of  the  federal  government  the  appointment 
of  pilots,  and  assigned  to  those  thus  appointed  the  limits  within  which  to 
exercise  their  functions,  your  memorialists  would  have  been  sensible  that 
such  regulation  was  in  the  exercise  of  a  constitutional  power;  but  finding 
that,  under  the  excitement  of  local  prejudice,  Congress  has  overstepped 
constitutional  bounds,  and  delegated  to  a  sister  State  the  right  of  oppoijit- 
ing  mvnici  pal  officers  to  per  form  their  functions  wifhin  the  territorial  lim- 
its of  this  State,  they  claim  the  restraint  of  such  authority,  and  that  the 
integrity  of  the  State  be  asserted  against  such  infringement  of  its  sove- 
reign rights.  The  federal  government  has  full  power  to  appoint  ?7.v  own 
officers  to  discharge  their  duties  everywhere,  but  has  none  to  autliorize 
the  exercise  of  the  municipal  jurisdiction  of  one  sovereign  State  within 
the  confines  of  another,  and  thus  perpetrate  consolidation  in  its  most 
hideous  deformity. 

It  is  a  well  settled  proposition  that  the  federal  government  can  do  no 
act  on  the  navigable  waters  within  the  limits  of  the  United  States,  which, 
or  a  corresponding  act  to  which,  it  cannot  do  on  land  within  the  same 
limits."  If,  therefore,  the  navigable  waters  belong  no  more  to  the  fede- 
ral government, and  are  nototherwise  affected  by  the  Union,  than  the  land 
itself,  and  the  act  of  1837  is  within  the  scope  of  federal  legislation,  in 
authorizing  the  municipal  officers  of  the  State  of  New  Jersey  to  discharge 
their  duties  on  the  waters  of  the  State  of  New  York,  it  may  with  equal 
propriety  authorize  the  former  State,  or  indeed  any  member  of  the  Union, 


11 


[15  1 


to  appoint  officers  indiscriminately  to  perform  the  duties  of  their  office  on 
land  within  the  sanio  limits.  That  doctrine  is  wholly  repugnant  to  the 
idea  of  sovereignty.  Such  cotitrol,  deriving  validity  from  a  sovereign 
power,  necessarily  implies  a  diminution  of  the  sovereignty  of  New  York 
to  the  extent  of  that  control,  and  an  investment  of  that  sovereignty  in  the 
State  of  i\ew  Jersey  to  the  same  extent  as  that  control  is  in] posed.  The 
jurisdiction  of  a  State  within  its  own  territory  is  ext  lusive  and  absolute^ 
and  is  susceptible  of  no  linjitation  not  imposed  by  itself  In  adopting  the 
federal  constitution,  the  States  invested  Congress  with  the  power  to  regu- 
late comtnerce,  but  did  not  contemplate  that  Congress  should  dt(e£iate  that 
risf^f'  (as  in  the  present  act  exercised)  by  authorizing  one  State  to  license 
officers  to  perforai  the  duties  of  their  appointment  within  the  territory  of 
another. 

The  Congress  of  1789  was,  in  part,  composed  of  those  illustrious  states- 
men who  framed  the  constitution,  and  the  act  of  that  date  may  be  regard- 
ed as  a  contemporaneous  legislative  exposition  of  that  instrument.  That 
Congress  well  utiderstood  the  limit  of  Pederal  and  State  sovereignty  ;  and, 
moving  with  caution  and  circumspection,  did  not  venture  to  trench  on 
State  sovereignty,  but,  e.r  ahundantta  cantt^la^  avoided  it,  and  limited  the 
laws  of  the  respective  States  to  the  pilots  of  the  respective  States,  the  act 
declaring  "  That  all  pilots,  <fcc.,  (fcc,  shall  continue  to  be  regulated  in 
conformity  with  the  existing  laws  of  the  States  respectively  wherein  suck 
pilots  may  6^." 

Though  the  terms  of  the  act  of  1837  invest  masters  of  vessels  with 
authority  to  employ  certain  pilots,  yet  the  aim,  object,  and  spirit  of  it,  is 
to  confer  the  power  in  the  pihtfs  to  act  rather  than  on  the  masters  to  em- 
ploy them,  as  is  sufficiently  expressed  by  the  title  of  the  sinijie  section 
act.  It  is  act  concerning  pilots."  Nor  is  it  an  act  for  the  regulation 
an4  government  of  pilots,  but  designed  to  extend  the  field  of  operation, 
heretotore  denied,  to  the  citizens  of  the  Slate  of  New  Jersey,  by  confer- 
ring on  them,  in  common  with  the  pilots  of  New  York,  the  right  of  pilot- 
ing vessels  on  the  exclusive  waters  of  this  State — for  exclusive  the  waters 
are,  as  regards  the  municipal  rehtions  of  this  State — of  exercising  the 
sovereignty  of  New  Jersey  within  the  State  of  New  York,  their  only  pow- 
er to  act  springing  from  the  conmiission  of  tJiat  State  ;  that  commission 
being  an  essential  portion  of  the  sovereignty  of  the  State  that  grants  it, 
proceeding  from  such  sovereign  power,  and  following  those  in  whom  it  is 
invested  beyond  the  confines  of  such  sovereignty.  The  expression  in  the 
act  "  that  it  u]ay  be  lawful"  by  obvious  legal  intendment  is,  that  it  was  un- 
lawful before,  or  is  a  grant  of  power  not  before  possessed,  as,  if  it  were 
lawful  before  the  act  of  1837,  the  leijislative  declaration  to  that  effect  was 
wholly  superfluous.  The  act  of  1837  accomplishes  two  purposes.  First, 
it  deprives  the  Slate  of  New  York  of  the  exclusive  authority  to  appoint 
pilots  for  her  own  waters  ;  and,  second,  authorizes  the  State  of  New  Jer- 
sey to  participa  e  equally  iti  that  right,  notwithstanding  the  Supreme  Court 
of  the  United  Slates  has  adjudged  that  the  licensing  of  pilots  is  embraced 
in  the  power  of  a  State  to  regulate  h^  r  police,  her  domestic  trade,  and  the 
government  of  her  own  citizens.  That  it  was  unlawful,  before  that  act, 
for  the  pilots  of  New  Jersey  to  perform  their  functions  in  the  waters  of 
New  York,  is  a  notorious  fact,  well  understood  by  the  citizens  of  New 
Jersey  as  well  as  New  York  ;  so  well  understood  by  the  former,  that  it 
has  never  before  been  seriously  claimed.    All  the  right  arises  under  the 


[15] 


12 


act  of  1837,  and  is  now  enjoyed  in  most  successful  activity — aright  to  do 
that  which  was  before  prohibited,  and  cautiously  guarded  against  by  the 
act  of  1789;  a  right  to  invade  the  sovereignty  of  this  State;  a  right  to 
New  Jersey  to  employ  her  citizens,  without  the  concurrence  or  approbation, 
of  New  York,  even  against  her  will,  in  a  pursuit  which  those  citizens 
alone  of  New  York  can  be  engaged  in,  who  are  licensed  by  that  State  to 
which  they  owe  their  allegiance;  a  right  by  which  the  emissaries  of  a 
foreign  State,  armed  with  the  commission  of  their  sovereign,  are  exempted 
from  the  operation  of  the  laws  of  that  Slate  in  whose  confines  they  exe- 
cute the  duties  of  their  office;  are  unrestrained  by  the  salutary  regulations 
established  in  pursuance  of  such  laws,  and  rendered  amenable  alone  (if 
at  all)  for  misconduct  to  that  State  whose  sovereignty  they  represent,  and 
from  which  they  derive  their  official  existence.  Is  this  consistent  with 
State  rights  and  State  sovereignty,  or  does  it  not  more  strongly  savor  of 
consolidation?  If  tliis  blending  of  jurisdiction  is  compatible  with  sove- 
reignty, that  boasted  independence  is  but  a  theory. 

It  has  lieen  well  said  that  the  act  of  1837  "  has  occasioned  serious  diffi- 
culties in  the  operation  of  the  pilot  system  of  the  United  States,  and 
brought  about  a  collision  of  jurisdiction,  first  between  the  United  States 
and  the  States  respectively,  and  next  between  States  bordering  on 
each  other  and  bounded  by  navigable  waters  as  specified  in  the  law.'* 
The  collision  of  jurisdiction  between  tlie  United  Stales  and  the  States  is 
rather  prospective  in  its  practical  operation  ;  but  it  is  a  collision,  in  princi- 
ple, on  the  threshold.  It  compels  one  State  to  admit  and  tolerate,  within 
its  own  jurisdiction,  the  action  and  functions  of  a  municipal  license  issu- 
ing from  another  State.  It  authorizes  one  sovereign  State  to  inva  ie,  in 
this  manner,  the  waters,  territories,  and  jurisdiction  of  another.  The  as- 
sumption of  this  authority  by  Congress  will,  we  think,  be  allowed  to  be 
a  collision  of  jurisdiction  between  the  United  States  and  the  J:5tates*  It 
carries  violence  on  the  face  of  it.  It  requires  the  authorities  of  New  York 
(State  and  city)  to  recognise  pilots  acting  under  commissions  from  the 
State  of  New  Jersey,  and  to  admit  them  on  a  footing  of  equality  with  their 
own  pilots  within  their  own  jurisdiction.  The  consequence  already  is, 
that  the  State  of  New  Jersey,  having  little  navigation,  issues  commissions 
or  licenses  to  pilots  not  so  much  because  the  State  needs  their  servi'^es,  as 
because  these  pilots  need  the  profits  of  employment  under  the  jurisdiction 
of  New  York.  New  York,  having  a  vast  interest  at  stake,  has  found  it 
necessary  to  enact  an  extended  code  of  pilot  regulations,  prescribing  ap- 
prenticeship, qualifications,  &c.,  all  of  which  are  disturbed,  trampled  on, 
and  may  be  rendered  of  no  effect,  by  enforcing  upon  them  New  Jersey 
pilots  acting  under  New  Jersey  authorities. 

The  principle,  as  will  be  seen,  is  precisely  the  same  as  if  Congress  had 
passed  a  law  to  enforce  every  State  to  give  full  credit  and  scope  of  action 
to  commissions  or  licenses  issued  by  any  other  State;  such,  for  example, 
as  lawyers',  doctors',  tavern  keepers',  pedlars',  or  any  other  licenses 
usually  derived  from  municipal  authorities.  Was  it  ever  supposed  that 
Congress  had  this  power? 

'1  he  power  granted  to  Congress  by  the  constitution  "  to  regulate  com- 
merce among  the  several  States,"  is  a  very  diffiirent  thing  from  a  power  to 
impose  the  municipal  authorities  of  one  State  upon  those  of  another,  as  is 
the  effect  of  the  law  of  Congress  now  under  consideration.  This  is 
tlie  single  principle,  the  exact  shape  and  definite  action  of  this  law,  viz  : 


13 


[15] 


to  enforce  the  authorities  of  one  State  on  those  of  another — a  principle,  as 
cannot  be  denied,  of  disorganization  and  aggression. 

"  Congress  shall  have  power  to  regulate  commerce  between  the  Slates," 
etc.  The  fair  interpretation  of  a  law  is  a  reasonable  one.  One  of  the 
first  and  fundamental  principles  of  our  state  of  society  is  the  sovereignty 
of  the  States  within  their  own  jurisdiction,  as  to  "all  powers  not  dele- 
gated to  the  United  States  by  the  coiistitution,  or  prohibited  by  it  to  the 
States;"  and  the  question  now  belnre  us  is,  whether  this  power  "to 
regulate  commerce  between  the  Stales"  would  authorize  this  law  of  1837? 
We  think  not;  first,  because  the  jurisdiction  assumed  is  personal  as  to 
the  subject  of  it,  and  therefore  municipal.  It  is  the  government  of  the 
agent  of  conmierce,  which  lies  in  the  jurisdiction  of  a  State,  and  does  not 
aifect  the  terms  or  conditions  on  which  the  material  of  commerce  shall 
pass  from  one  State  to  another.  By  this  law  the  State  of  New  Jersey 
may  and  does  push  its  jurisdiction  over  persons  itjto  the  State  of  New 
York,  and  compels  the  latter  to  admit  such  jurisdiction  by  surrendering 
its  own,  so  far  as  the  regulation  of  the  personal  conduct  of  pilots  is  con- 
cerned in  their  profe.^sional  capacity,  and  as  to  the  terms  of  qualification, 

"To  regulate  commerce  between  the  States" — to  prevent  one  State 
from  embarrassing  or  impeding  the  commerce  of  another;  to  prescribe,  if 
necessary,  the  terms  on  which  the  material  of  commerce  shall  pass  from 
one  State  to  or  through  another;  to  equalize  the  terms  of  commercial 
intercourse  ;  to  maintam  the  obligation  of  contracts  throughout  the  Union  ; 
to  provide  a  standard  of  common  currency,  etc.,  but  it  would  be  pre- 
posterous to  suppose  that  this  power  was  intended  to  authorize  Congress 
to  compel  the  State  of  Georgia  to  recognise  a  pedlar's  license  obtained 
from  the  municipal  authorities  of  South  Carolina,  or  to  surrender  jurisdic- 
tion over  a  stage  driver's  functions  because  he  happened  to  take  up  his 
whip  in  a  neighboring  State.  Peddling  on  wheels  or  on  foot  is  commerce, 
doubtless,  as  much  so  as  shipping;  but  we  apprehend  that  a  nullification 
temper  would  be  extremely  prone  to  rise  if  Congress  should  attempt  to 
force  a  pedlar's  license  granted  by  one  State  upon  another.  The  pilot  is 
a  pedlar — that  is,  he  is  the  agent  of  a  peddling  voyage,  and  carries  in  his 
pocket  a  municipal  commission,  which  is  the  warrant  of  his  occupation 
as  much  as  the  driver  of  a  pedlar's  wagon.  We  belit-ve  it  will  be  admit- 
ted as  sound  doctrine,  that  when  a  man  passes  from  one  State  to  another, 
his  personal  accountability  is  transferred  to  the  latter.  He  cannot  be  ame- 
nable to  both  jurisdictions  at  the  same  time  and  for  the  same  acts.  The  rea- 
son is,  because  the  laws  of  the  State  left  behind  catnjot  f  illow  or  reach 
him — cannot  lap  over.  Even  if  he  is  a  criminal  flying  from  justice,  he  can- 
not be  overtaken  by  the  authorities  he  has  violated  ;  but  they  are  compelled 
to  resort  to  another  power  provided  by  the  federal  compact.  Jurisdiction 
is  sacred;  and  it  is  absurd  to  suppose  that  the  law  of  one  State  may  pre- 
scribe the  terms  and  modes  of  personal  acts  or  functions  performed  in  an- 
other State.  The  professional  functions  of  pilots  are  purely  personal 
acts. 

It  is  conceded  that  an  officer  or  acram  of  the  United  States  must  be  ad- 
mitted and  entertained  by  the  States  in  the  discharge  of  his  appropriate 
functions,  and  that  for  these  duties  he  comes  under  the  jurisdiction  of 
the  authority  from  which  he  derives  his  commission.  For  all  such  pur- 
poses, the  jurisdiction  of  the  United  States  comprehends  all  the  Stales. 
But  It  will  be  seen  that  the  entrance  of  a  commission  or  license  of  the 


[  15  ]  14 

federal  government  into  the  jurisdiction  of  the  States  for  such  purposes, 
is  a  very  ditferent  thing  from  tlie  entratire  and  action  of  a  commission  or 
license  of  any  one  of  ilie  States  into  tlie  territorifs  of  another.  We  are 
not  aware  that  such  a  thing  can  possibly  be,  in  any  propriety,  or  by  any 
known  right;  and  yet  this  is  precisely  the  case  authorizeil  by  this  law  of 
Congress.  Nor  would  ii  he  sufficient  to  say  that  the  New  Jersey  pilot 
enters  the  waters  of  New  York  as  an  agent  of  the  federal  government, 
because  it  is  not  a  fact.  He  is  an  agent  of  the  Slate  of  New  Jersey,  so 
far  as  the  immediate  derivation  of  his  authority  is  concerned,  which,  we 
conceive,  is  all  we  [jave  to  consider.  A  commission  or  license  of  New 
Jersey  is  forced  upon  the  State  of  New  York. 

If  Congress  had  assumed  jurisdiction  over  pilots  in  toto,  made  the 
necessary  regulations,  and  ordained  their  licenses  to  issue  immediately 
from  federal  authorities,  this  collision  of  State  jurisdiction  would  have 
been  avoided. 

Admitting  that  Congress  had  original  jurisdiction  in  the  case,  yet  the 
jurisdiction  was  in  the  state  of  a  non  user;  was  vacated  so  far  as  the  ac- 
tion of  the  federal  government  is  concerned  ;  was  conceded,  indeed,  and 
sanctioned  by  the  formal  acts  of  this  government,  in  favor  of  the  States  ; 
and  there  never  was  a  symptom  that  Congress  iiitended  to  assume  it  till 
1837,  when  it  was  suddenly,  and  we  may  add  violently,  taken,  without 
even  the  couriesy  of  a  notice  served  on  the  parties  concerned.  The  pilot 
regulations  formed  a  part,  in  some  Stales  a  large  part,  of  the  municipal 
code  of  those  which  had  ports;  and  the  State  of  New  York,  at  the  very 
moment  of  the  passage  of  this  law  of  Congress,  in  1837,  was  revising  its 
own  laws  on  this  subject,  and  in  just  thu'ty  nine  days  thereafter  adopted 
a  new  code,  consisting  of  two  acts  and  fifty-two  sections,  tnany  of  those 
sections  being  chapters  in  themselves,  the  authority  and  effect  of  which 
were  destroyed  by  this  act  of  Congress,  so  far  as  the  scope  of  the  latter 
extends!  Is  not  this  a  most  remarkable  collision  of  jurisdiction  ?  It  was 
doubtless  proper,  and  was  naturally  to  be  expected,  in  view  of  the  histo- 
ry of  the  past,  if  Congress  meditated  such  an  assumption — we  will  not 
say  usurpation — of  power— although  it  cannot  be  called  resumption,  for 
they  had  never  before  used  it — it  was  proper,  we  say,  that  a  notice  of  such 
purpose  should  have  been  served  on  the  States,  and  that  time  should  have 
been  allowed  the  State  authorities  to  accommodate  their  own  position  to 
this  new  position  of  the  federal  government,  so  seriously,  extensively, and 
vitally  affecting  themselves.  We  say  vitally,  for  it  is  impossible  not  to 
feel  that  it  is  an  invasion  of  State  sovereignty.  But  it  affected  their  con- 
venience and  paralyzed  the  arm  of  their  authority,  besides  leaving  them 
open  to  privateering  incursions  from  neighboring  States,  acting  under 
commission  of  those  States,  with  the  authority  of  the  United  States  to 
back  them. 

The  design  of  the  act  of  1837  was  to  break  up  what  was  averred  to  be 
a  combination  among  the  pilots  of  New  York,  impairing  the  fidelity  and 
usefulness  of  the  service,  by  letting  in  upon  them  the  pilots  of  New  Jer- 
sey, with  a  view  of  introducing  a  fair  and  salutary  competition. 

It  appears  that  the  supreme  legislative  authority  of  the  State  of  New 
York,  in  the  light  of  its  own  sovereignty,  in  the  good  faith  of  the  act  of 
Congress  of  1 798,  and  in  accordance  with  all  usage  in  these  United  States, 
took  up  >n  itself  to  revise  and  aniend  the  laws  of  the  State  for  the  regula- 
tion of  pilots,  in  conseiiuence  of  the  public  excitement  respecting  the  loss 


15 


of  the  Bristol  and  Mexico,  and  simultaneously  with  the  action  of  Con- 
gress on  the  same  subject,  for  the  same  object.  It  is  evident,  from  an  ex- 
amination of  the  law  of  New  York,  that  no  pains  or  expense  were  spared 
to  obtam  all  information  that  could  be  of  use,  and  that  the  committee 
charged  with  the  duty  of  reporting  a  bill  perfm-med  their  task  with  great 
fidelity.  Two  separate  acts  were  prepared,  one  of  forty  four,  and  the  other 
of  eight  sections,  in  all  fifty  two,  altogether  of  such  extent  and  particu- 
larity as  to  constitute  a  proper  pilot  code.  The  twenty  third  section  of 
the  first  act  strikes  at  the  principle  of  combination  complained  of  as  the 
great  evil,  and  is  a  full  and  sufficient  remedy, if  faithfully  administered  by 
the  board  of  commissioners.    It  is  as  follows  : 

"  The  earnings  of  the  pilots  belonging  to  any  one  boat  shall  be  equally 
divided  among  the  pilots  of  said  boat ;  and  no  pilot  shall  participate,  un- 
less authorized  by  the  commissioners,  in  the  earnings  of  any  others  than 
diose  attached  to  the  same  boat ;  and  for  breach  of  this  provision,  any  pilot 
or  pilots  shall  forfeit  his  or  their  license  or  licenses." 

By  this  section,  and  others  provided  for  its  proper  execution,  every  pilot 
boat  has  a  separate  interest,  is  barred  from  combination  by  heavy  penal- 
ties, and  forced  into  competition  with  all  other  boats. 

As  a  matter  of  fact,  however,  we  have  the  published  testimony  of  the 
board  of  commissioners  that  no  such  combination  among  die  New  York 
pilots  has  existed  "for  several  years  past."  Moreover,  they  say  "that  the 
competition  existing  among  the  New  York  pilots  is  equally,  if  not  more 
strenuous,  than  that  existing  between  them  and  the  New  Jersey  pilots. 
We  know  this  to  be  the  fact,  from  the  report  books  of  the  last  three  years' 
standing,  and  from  every  day's  observation.  We  have  before  us  reports 
made  by  them  (Jhe  pilot  boats)  against  each  other,  for  infringements  made 
on  each  other's  rights,  which  of  course  we  have  to  adjust  "  The  date  of 
this  evidence  is  1840.  The  commissioners  also  certify  that  whatever  re- 
form has  been  effected  "  has  been  the  result  solely  of  the  State  law  of 
1837,"  meaning  to  the  exclusion  of  the  influence  of  the  law  of  Congress. 

The  understanding  established  by  the  act  of  Congress  of  1798,  between 
the  federal  government  and  the  States,  upon  this  subject,  was  the  result 
of  experience  and  the  dictate  of  good  sense.  In  the  first  place,  it  appears 
to  have  been  seen  and  admitted — that  is  the  natural  inference  from  the 
transaction — that  the  regulation  of  the  pilots  within  the  bounds  of  the 
States  is  properly  and  necessarily  a  part  of  State  jurisdiction.  Next,  as  it 
was  a  matter  of  great  importance  that  it  should  be  attended  to,  this  act  of 
Congress,  of  1798,  may  properly  be  viewed  in  the  light  of  a  declaration 
on  the  part  of  Congress  as  to  the  right  of  sovereignty  in  this  particular, 
and  a  full  concession  thereof  to  the  States ;  and  on  the  part  of  the  States 
a  tacit  pledge,  and  therefore  an  understanding  or  covenant,  that  they,  the 
States,  would  faithfully  perform  this  part  of  their  duty.  They  had  done 
it  befor<^,  and  they  have  done  it  ever  since.  It  was  a  usage  of  more  than 
half  a  century,  never  challenged,  and  was  solemnly  ratified  in  1798,  by 
the  very  party,  to  wit.  Congress,  which  broke  in  upon  it,  and  disturbed, 
not  to  say  violated  it,  by  the  act  of  1837. 

it  is  evident  that  the  States  only  are  competent  to  attend  to  this  busi- 
ness, not  to  touch  the  question  of  right.  liOok  at  the  two  acts  of  New 
York  in  1837,  and  to  the  act  of  Congress  of  the  same  year.  The  former 
is  an  extended  and  able  pilot  code,  providing  for  all  the  necessities  of  the 
service,  as  suggested  by  the  whole  history  of  New  York  navigation.  It 


[15  ] 


16 


creates  a  branch  of  municipal  polity  of  grea't  dignity  and  consequencev 
well  adapted  to  its  purposes.  It  shows  thai  all  concerned  in  it  understood 
the  subject,  and  conniiendably  discharged  their  duly.  Whereas  the  con- 
temporaneous law  of  Congress  evinces,  not  only  a  want  of  consideration, 
but  great  ignorance  of  the  subject.  There  is  but  one  single,  solitary  prin- 
ciple in  it,  and  that,  most  unfortunately,  is  a  principle  of  mischief — of  two- 
fold, tri-f()ld,  manifold  mischief — a  naked  principle  of  aggression  in  the 
first  stage,  giving  birth  to  and  authorizing  nothing  but  aggression  in  all 
other  of  its  stages  and  forms.  The  moment  this  law  came  to  o[)erate  in 
the  Slate  of  New  York,  or  in  any  other  State,  it  struck  at  the  sovereignty 
of  that  State,  suspended  its  authority  as  to  the  matter  in  question,  and 
forced  upon  its  jurisdiction  the  action  and  use  of  a  commission  or  license 
(municipal)  of  a  foreign  State.  1:  is,  moreover,  a  violation  of  the  pledged 
faith  of  Congress — a  faith  as  soleiiuily  pledged  as  in  any  part  or  parcel  of 
the  federal  constimtion — and  is  a  matter  of  record  in  the  journals  of  that 
body,  and  incorporated  with  its  laws.  We  venture  to  suggest,  that  such 
a  hasty  act,  we  are  disposed  to  say  error  of  legislation — for  such  it  evi- 
dently was — is  not  to  be  found  in  ourannals.  We  are  confident  it  cannot 
be  persisted  in  by  Congress,  after  mature  reflection.  Are  they  prepared 
to  say  to  this  country  that  they  will  sustain  such  a  wanton  invasion  of 
State  rights?  We  say  wanton,  for  what  possible  good  can  result  from  it? 
There  is  positively  nothing  but  evil,  vi^iihout  considering_the  breach  of 
faith,  and  the  collision  of  jurisdiction.  The  regulation  of  the  pilots  of  our 
waters  must  be  either  in  the  care  of  the  United  States  or  of  the  States. 

The  jurisdiction  cannot  possibly,  certainly  not  conveniently,  be  divi- 
ded. We  think  it  cannot  possibly.  It  must  be  entire  in  one  case  or  the 
other.  The  State  of  New  York  has  evinced  its  fitness  and  competency, 
by  its  elaborate  and  well  adapted  laws  of  1837;  whereas  Congress  has  laid 
down  but  a  single  rule,  and  that  a  disorganizing  one. 

But  we  think  it  certain  that  the  States  will  not  submit  to  this  assump- 
tion of  power  over  their  heads,  in  violation  of  immemorial  usage  and  of 
compact.  It  is  a  perfect  novelty,  an  unheard  of  event,  that  a  municipal 
commission  or  license  of  one  State  should  be  forced,  with  all  its  powers 
and  privileges,  upon  the  jurisdiction  of  another  State,  to  suspend  andnul- 
lify  the  authority  of  that  State!  And  yet  this  is  the  naked  principle,  as 
well  as  the  sum  and  substance  of  the  law  of  Congress  of  1837.  It  con- 
tains nothing  more,  and  nothing  less.  There  is  nothing  but  mischief, 
portentous  mischief,  in  the  act. 

In  the  same  manner  as  lawyers,  doctors,  and  other  professions,  obtain 
licenses  to  practise,  under  the  municipal  regulations  of  their  respective 
States,  granting  them  peculiarand  exclusive  privileges  as  a  compensation 
for  the  expenses  of  their  education  and  their  devotion,  thus  qualified  to 
callings  having  in  charge,  professionally,  the  welfare,  fortunes  and  lives 
of  the  community  ;  so  also  the  pilots  of  our  ports  and  harbors,  having 
qualified  themselves  by  a  long  course  of  trainitig  and  at  great  expense, are 
licensed  by  municipal  authorities,  and  are  endowed  thereby  with  certain 
exclusive  privileges,  in  the  use  of  which  their  services  are  intimately  con- 
nected with  the  wealth,  happiness,  and  lives  of  the  community.  It  is 
scarcely  possible  to  name  a  more  important  function,  in  the  ordinary  walks, 
of  life,  than  that  of  pilots.  They  have  constantly  in  charge  immense 
wealth  and  many  lives  of  our  citizens.  Nor  can  they  transfer  the  use  of 
their  talents  and  acquirements  to  another  place,  or  to  another  State,  if  they 


17 


[15] 


are  injured.  A  pilot  of  New  Orleans  might  as  well  go  to  the  moon,  as  to 
New  York  or  Boston,  and  vice  versa;  for  he  is  only  qualified  to  act  where 
he  is  acquainted  with  the  pilot  grounds.  His  talents  are  of  no  use  to  him 
any  where  else. 

Besides,  it  is  to  be  considered  thai  the  public  authorities  never  call  a 
lawyer  to  account  for  losing  his  case,  or  a  doctor  for  losing  his  patient, 
unless  there  is  suspicion  of  crime ;  whereas,  a  pilot  is  liable  to  penalties 
for  every  loss  of  property  and  life  under  his  charge,  and  is  obliged  to  give 
bonds.  Other  professions  are  rarely  limited  by  law  in  their  charges  ;  but 
pilots  always  are.  The  rules  of  the  service  are  many  and  strict,  and  the 
vigilance  of  authority  great,  because  great  interests  are  at  stake.  The  pi- 
lots of  every  port  have  grown  up  under  their  own  system,  and  are  cotin- 
pelled  to  rely  upon  the  uniform  maintenance  of  that  system  for  their  own 
livelihood,  and  that  of  their  dependant  families.  Whereas,  this  new  law 
of  Congress,  of  1837,  takes  them  by  surprise,  invades  their  rights,  takes 
away  the  small  profits  of  their  profession,  and  blasts  their  prospects  of  liv- 
ing. They  are  entirely  powerless,  and  are  compelled,  unresistingly  and 
unjustly,  to  submit  to  the  incursions  of  foreigners,  acting  under  the  com- 
mission or  license  of  foreign  States;  thus  enforced,  by  the  supreme  author- 
ity of  the  nation,  to  take  away  the  earnings  and  bread  of  those  who  had 
consecrated  their  lives  to  this  service  for  the  sake  of  the  pledged  benefit. 
These  invaders  of  right,  having  never  served  an  apprenticeship,  nor  con- 
formed to  the  rules  of  qualification,  as  established  by  the  municipal  au- 
thority of  the  jurisdiction  thus  entered,  are  enabled,  by  act  of  Congress, 
to  jump  over  these  laws,  set  them  at  defiance,  and  can  afford  so  to  under- 
bid the  lawful  tenants  of  the  ground  as  to  expel  them  even  from  compe- 
tition— as  to  expel  them  altogether;  and  the  next  thing  will  be  a  combi- 
nation of  foreigners,  under  foreign  licenses,  in  possession  of  the  pilot 
grounds  of  New  York.  This  will  be  the  inevitable  result.  The  service 
must  necessarily  be  depreciated  in  its  character,  and  all  the  experience  of 
the  local  authorities  lost,  in  the  loss  of  their  power  of  control.  The  evil 
is  immense.  It  is  not  only  a  great  injustice,  but  there  is  a  public  and  au- 
thoritative sanction  given  to  the  spirit  and  to  acts  of  disorganization,  and 
great  wealth  and  many  lives  are  put  in  jeopardy. 

Next,  we  have  the  testimony  of  the  board  of  commissioners  put  over 
the  pilots  of  New  York  city.  They  state,  first,  that  the  new  law  of  that 
State  has  proved  effectual  for  purposes  of  reform,  so  far  as  it  was  required  ; 
next,  to  the  point  and  fact  of  competition  between  the  pilots  of  New 
York ;  and,  lastly,  a  very  touching  certificate  to  the  excellence  of  their 
character,  and  to  the  fidelity  of  their  service. 

"  A  more  valuable,  capable,  deserving  and  enterprising  class  of  pilots, 
the  world  does  not  produce  ;  they  almost  daily  board  vessels  at  sea,  from 
fifteen  to  fifty,  one  hundred  and  fifty,  and  two  hundred  miles  from  the 
Hook ;  and  in  some  instances  they  go  up  to  Nantucket  and  St.  George's 
bank.  It  is  heart  rending  to  see  these  invaders  of  our  State  rights  board 
vessels  alongside  the  dock,  and  carry  them  to  sea,  to  the  exclusion  of  our 
pilots  who  have  served  a  regular  apprenticeship,  and  who  have  such  an 
immense  capital  afloat.  If  they  have  for  once  erred,  they  have  been  suffi- 
ciently punished  for  it,  and  have  made  ample  atonement  by  their  unex- 
ceptionable conduct,  and  a  probation  of  nearly  four  years.  The  general 
government, as  well  as  the  State,  may  be  assured  that  they  need  bounder 
no  apprehension  of  neglect  of  duty  among  thera,"  &c. 


[15] 


18 


And  this  testimony  from  the  commissioners  appointed  by  the  State  to 
see  that  the  pilot  regulations  of  New  York  are  observed  and  executed: 

"This  board,"  they  say  themselves,  "is  composed  of  men  who  have 
sailed  from  this  port  as  long,  if  not  longer,  than  most  men  who  have  made 
the  sea  their  profession ;  and  we  have  found,  from  our  experience  of  from 
thirty  to  thirty-five  years,  that  we  were  never  at  a  loss  for  a  pilot,  except 
when  a  great  influx  of  arrivals  took  place  and  the  pilots  were  all  engaged, 
which  has  some  years  past  been  the  case,  and  caused  a  small  detention. 
Since  that,  the  defect  has  been  remedied  by  an  increase  in  the  number  of 
pilots ;  which  increase  has  been  such,  and  shordy  will  be  greater,  by  the 
expiration  of  the  indentures  of  apprentices,  that  they  will  scarcely  be  able 
to  pay  expenses.  This  board  would,  as  a  matter  of  impartial  justice,  beg 
of  Congress  either  to  cause  a  repeal  of  the  laws  which  do  now  allow  the 
Jersey  pilots  to  pilot  in  our  waters,  or  place  them  under  the  same  restric- 
tions as  those  to  which  our  pilots  are  subjected. 

"  The  State  of  New  Jersey  having  so  little  commerce,  found  no  occa- 
sion for  legislating  on  the  subject  of  pilots  till  this  act  of  Congress  of 
1837,  and  then  her  object  could  not  be  legitimate  as  a  moral  question,  be- 
cause it  was  only  to  depredate  on  the  rights  of  her  neighbors,  New  York, 
Pennsylvania  and  Delaware.  Immediately,  men  could  come  from  Rhode 
Island,  Connecticut,  from  the  west,  from  any  where,  from  foreign  ports 
even,  and  take  out  licenses  for  piloting  from  the  New  Jersey  authorities, 
however  slender  their  qualifications,  and  be  entitled  to  all  the  privileges 
of  New  York  pilots. 

"  The  State  of  Mississippi  only  waited  to  see  if  the  operations  of  New 
Jersey,  under  the  act  of  Congress,  would  be  tolerated,  and  out  came  her 
act,  in  February,  1840,  to  license  forty  pilots  to  act  in  the  mouths  and 
passes  of  the  Mississippi.  She  even  went  to  Congress  with  petitions  for 
an  alteration  or  extension  of  the  law,  to  be  the  more  secure  of  her  end. 
Next,  perhaps,  we  shall  hear  of  a  State  having  no  navigable  border,  taking 
her  men  from  the  plough  to  pilot  the  shipping  of  our  ports. 

"  The  city  of  New  York  is  already  supplied  with  nearly  a  hundred 
pilots  of  her  own,  regularly  trained  and  well  qualified,  who  have  a  capital 
of  $100,000  afloat  in  their  boats — a  property  which,  on  account  of  the 
perils  to  which  it  is  exposed,  cannot  be  insured  at  any  rate  which  the 
pilots  are  able  to  aflbrd.  Neither  are  those  boats  fit  for  any  other  service, 
any  more  than  their  masters." 

Let  us  now  further  examine  the  practical  effect  of  the  act  of  1837.  To  do 
so,  a  reference  to  the  boundaries  of  this  State,  and  its  territorial  jurisdic- 
tion, and  the  pilot  laws  since  1731,  becomes  necessary  to  ascertain  the  ex- 
tent of  her  limits,  and  the  jurisdiction  which  has  ever  been  claimed  for 
her  in  regard  to  pilot  regulations.  Before  the  compact  between  the  States 
of  New  York  and  New  Jersey,  respecting  their  territorial  limits  and  juris- 
diction, ratified  by  the  act  of  Congress  of  June  28,  1834,  the  boundary  of 
New  York  on  New  Jersey  was  as  follows  :  from  a  "  rock  on  the  west  side 
of  the  Hudson  river,  in  the  latitude  of  forty-one  degrees  north,  marked  by 
said  commissioners  ;  thence  southerly  along  the  west  shore  at  low-water 
mark  of  the  Hudson  river,  of  the  Kill-Van  Kull,  of  the  sound  between 
Staten  island  and  New  Jersey,  and  of  Raritan  bay,  to  Sandy  Hook."  Be- 
fore the  compact  of  1834,  the  boundary  of  New  York  extended  to  low- 
water  mark  throughout  its  border  on  the  State  of  New  Jersey.  The  com* 
pact  of  1834  does  not  vary  that  boundary  to  affect  this  subject. 


19 


[15] 


"Article  1.  The  boundary  line  between  the  two  States  of  New  York 
and  New  Jersey,  from  a  point  in  the  middle  of  Hudson  river,  opposite  the 
point  on  the  west  shore  thereof,  in  the  41st  degree  of  north  latitude,  as 
heretotore  ascertained  and  marked,  to  the  main  sea,  shall  be  the  middle  of 
the  said  river,  of  the  bay  of  New  York,  of  the  waters  between  Staten 
island  and  New  Jersey,  and  of  Raritan  bay,  to  the  main  sea,  except  as 
is  hereafter  otherwise  particularly  mentioned. 

"Article  2.  The  State  of  New  York  shall  retain  its  present  jurisdic- 
tion over  Bedlow's  island,  Ellis  island,  and  shall  also  retain  exclusive 
jurisdiction  of  and  over  the  other  islands  lying  in  the  waters  above  men- 
tioned and  now  under  the  jurisdiction  of  that  State. 

"  Article  3.  The  State  of  New  York  shall  have  and  enjoy  exclusive 
jurisdiction  of  and  over  all  the  waters  of  the  bay  of  New  York,  and  of  and 
over  all  the  waters  of  the  Hudson  river  lying  west  of  Manhattan  island, 
and  to  the  south  of  the  mouth  of  Spuytenduyvil  creek,  and  of  and  over 
the  land  covered  by  the  said  waters,  to  the  low-water  mark  on  the  west- 
erly or  New  Jersey  side  thereof,  subject  to  the  following  rights  of  property 
and  of  jurisdiction  of  the  State  of  New  Jersey,  that  is  to  say — 

"  1st.  The  State  of  New  Jersey  shall  have  the  exclusive  ricrJit  of  prop- 
erty in  and  to  the  land  under  vmter  lying  west  of  the  middle  of  the  bay  of 
New  York,  and  west  of  the  middle  of  that  part  of  Hudson  river  which 
lies  between  Manhattan  island  and  New  Jersey. 

"  2d.  The  State  of  New  Jersey  shall  have  exclusive  jurisdiction  of  and 
over  the  wharves,  docks,  and  improvements  made  and  to  be  made  on  the 
shore  of  said  State,  and  of  and  over  all  vessels  as^romid  on  said  shore,  or 
fastened  to  any  such  wharf  or  dock,  except  that  the  said  vessels  shall  be 
subject  to  the  quarantine  or  health  laws,  and  laws  in  relation  to  passen- 
gers of  the  StAte  of  New  York,  which  now  exist  or  which  may  hereafter 
be  passed. 

"3d.  The  State  of  New  Jersey  shall  have  the  exclusive  right  of  regu- 
lating the  fisheries  on  the  westerly  side  of  the  middle  of  the  said  waters, 
provided  that  the  navigation  be  not  obstructed  or  hindered." 

The  other  provisions  of  the  compact  relating  to  the  division  of  jurisdic- 
tion and  right  of  property  of  the  Kill-Van-Kull,  the  sound  between  Staten 
island  and  New  Jersey,  lying  west  of  Wood  bridge  creek  and  the  Raritan 
bay,  need  not  be  transcribed,  as  they  are  not  invoked  in  the  consideration 
of  this  question. 

From  the  portions  quoted  from  the  compact,  the  jurisdiction  and  prop» 
erty  is  thus  distributed  : 

The  State  of  New  York  has  exclusive  jurisdiction  over  the  waters  of 
the  bay  of  New  York,  of  the  Hudson  river  west  of  Manhattan  island,  and 
over  the  lands  covered  by  water,  to  the  low- water  mark  on  the  New  Jersey 
shore,  and  over  Bedlow's  and  other  islands  mentioned. 

New  Jersey  has  the  exclusive  right  of  property  in  the  land  andf^r  water, 
west  of  the  middle  of  the  bay  of  New  York,  and  west  of  the  middle  of  the 
Hudson  river,  opposite  Manhattan  island.  That  State  has  also  exclusive 
jurisdiction  of  the  wharves,  &c.,  (fee,  on  the  shore  of  that  State,  and  over 
vessels  aground  on  her  shores,  or  fd.siened  to  her  wharres,  subject  to  the 
health  and  passenger  laws  of  New  York,  and  has  also  the  right  of  ?'egn- 
Inting  thn  fisheries  on  the  westerly  side  of  the  middle  of  the  waters  of 
New  York  bay  and  Hudson  river,  opposite  I\Ianhattan  island. 

In  other  words,  New  Jersey  has  no  jurisdiction  over  the  waters  of  New 


[15] 


20 


York  bay,  or  Hudson  river,  opposite  Manhattan  island,  except  those  flow- 
ing above  low-water  mark  on  Jersey  shore^  but  all  that  jurisdiction  is  ex- 
clusively vested  in  the  State  of  New  York. 

The  right  has  been  claimed  for  New  York,  and  maintained,  to  legislate 
exclusively  on  the  subject  of  pilots,  as  far  back  as  the  year  1694.  The 
act  of  the  colonial  assembly  of  New  York,  found  in  Livingston  &  Smith's 
laws,  passed  in  1731,  provides  for  the  appointment  of  pilots.  The  first 
section  is  as  follows:  "That  all  and  every  person  nominated  and  ap- 
pointed by  the  president  or  the  governor,  &c.,  &c.,  by  and  with  the  ad- 
vice and  consent  of  his  majesty's  council  for  the  colony,  to  be  pilot  or 
pilots  between  Sandy  Hook  and  New  York,  shall  be  the  pilot  or  pilots 
from  the  port  of  New  York  to  Sandy  Hook,  and  from  Sandy  Hook  to  the 
port  of  New  York,  and  to  and  from  these  places." 

The  sixth  section  provides  that  if  any  person  or  persons,  not  appointed 
in  the  manner  before  mentioned  or  deputed  by  those  so  authorized  as 
aforesaid,  shall  presume  to  take  upon  him  or  them  to  pilot  any  ship  or 
vessel  going  into  or  coming  out  of  the  said  port  of  New  York,  he  or  they 
shall  forfeit  and  pay  the  sum  of  £3.  The  first  section  of  32  George  II, 
passed  March  7th,  1759,  contains  the  same  prohibition,  under  the  increased 
penalty  of  £5. 

The  statute  of  February  19th,  1819,  in  the  22d  section,  maintains  the 
same  exclusive  jurisdiction.  It  is  as  follows  :  "  That  the  branch  pilots, 
the  deputy  pilots,  (fee,  &c.,  shall  be  the  ottly  persons  employed  in  the 
pilot  service  to  and  from  the  port  of  New  York,  by  the  way  of  Sandy 
Hook."  So  the  9th  section  of  the  statute  of  12th  April,  1837,  enacted  in 
the  face  of  the  act  of  Congress  of  AfJi  March  of  the  same  year^  declares 
that  "  any  person  7iot  holding  a  license  as  pilots  who  shall  pilot  or  offer  to 
pilot  any  ship  or  vessel  to  or  from  the  port  of  New  York  by  the  way  of 
Sandy  Hook,  shall  be  deemed  guilty  of  a  misdemeanor^  and  on  convic- 
tion thereof  be  punished  by  di  fine  not  exceeding  fifty  dollars,  or  imprison- 
ment not  exceeding  one  month  ;  but  no  such  penalty  shall  be  incurred 
by  piloting  or  offering  to  pilot  any  vessel  which  shall  have  been  in  sight 
of  Sandy  Hook  with  the  usual  signal  for  a  pilot,  and  shall  have  waited 
two  hours  without  one  having  offered  ;  nor  shall  this  section  apply  to  the 
captain  or  master  belonging  to  any  vessel  acting  as  pilot  thereof  by  virtue 
of  this  act." 

The  expression  "  not  holding  a  license  as  pilot,'^  manifestly  refers  to 
the  license  granted  in  pursuance  of  the  laws  of  this  State  ;  and  the  law  of 
12th  of  April,  1837,  is  ]jal/)ably  in  coliision  with  the  act  of  Congress  au- 
thorizing others  than  those  holding  such  license  to  pilot  vessels  to  or 
from  the  port  of  New  York  by  the  way  of  Sandy  Hook  ;  consequently,  if 
the  act  of  Congress  is  constitutional,  the  statute  of  New  Yoik  is  a  dead 
letter,  under  the  Gth  article  of  the  federal  constitution.  Was  it  becom- 
ing the  dignity  of  this  State  that  her  legislature  should,  advisedly,  pass  a 
law  that  was  without  force  or  effect?  and  is  it  not  the  paramount  obligation 
of  the  State  to  vindicate  that  law  in  the  assertion  of  her  sovereign  rights? 
a  law  only  to  be  sustained  by  overthrowing  the  conflicting  legislation  of 
Congress,  and  establishing  its  unconstitutionality. 

The  legislation  by  New  York  has  always  been  exclusive  and  co-exten- 
sive with  the  jurisdiction  overber  waters,  until  February  Sth,  1837,  when 
the  State  of  New  Jersey  passed  a  law^the  preamble  of  which  is  as  follows: 
"  That  whereas  the  commerce  of  New  Jersey  requires  every  facility  and 


21 


[15] 


aid  usually  extended  to  maritime  States,  and  whereas  at  this  time  there 
are  no  licensed  pilots  for  the  safe  conduct  of  our  increasing  commerce, 
rendering  us  wholly  dependant  upon  a  neighboring  State:  Therefore,  (fee, 
cfec."  In  truth,  that  act  was  passed  that  it  might  be  adopted  by  Congress, 
as  it  was  within  the  short  period  of  twenty-four  days,  more  for  the  pur- 
pose of  giving  employment  to  the  citizens  of  New  Jersey  within  the  juris- 
diction of  Ntw  York,  than  on  account  of  her  increasing  commerce;  and 
we  now  find  New  Jersey  pilots  navigating  vessels  (not  under  any  pre- 
tence of  jurisdiction  over  the  waters  from  that  State  to  the  high  seas) 
through  the  narrows,  to  and  from  sea;  through  the  East  river,  to  and  from 
Corlear'sHook  and  the  navy-yard, Brooklyn  ;  they  even  take  them  from  the 
slips  and  wharves  of  the  city  of  New  York,  at  the  extreme  points  of  that 
city,  whether  in  the  East  or  Hudson  river;  they  also  leave  them  at 
quarantine,  and  take  them  thence.  How,  it  is  asked,  can  it  be  said  that 
the  port  of  Tompkinsville,  at  quarantine,  is  a  port  "  situate  upon  waters 
which  are  the  boundary  between  two  States?" 

The  act  of  1837  uses  the  term  ''/;or/,"  not  port  of  entry;  and  it  is  well 
known  that  the  court  of  admiralty  recognises  Tompkinsville,  Williamsburg, 
Sing  Sing,  Newburg,  and  other  small  places,  as  ports,  and  has  frequently 
so  held  under  the  admiralty  jurisdiction  of  the  lien  law  of  material  men  of 
this  State,  equally  with  the  port  of  New  York. 

Can  this  claim  of  New  Jersey  be  justified  on  the  ground  that  these  wa- 
ters are  a  common  highway?  that  the  right  of  navigation  belongs  to  every 
citizen  of  the  United  States?  True,  it  is  a  highway;  but  it  is  equally 
true  that  the  control  and  regulation  of  a  highway,  within  the  body  of  a 
State,  is  the  province  and  prerogative  of  the  sovereignty  through  which  it 
passes ;  nor  is  that  regulation  incompatible  with  the  free  enjoyment  of 
such  highway.  Every  vessel  on  waters  within  the  territory  of  a  sover- 
eign State,  is  subjected  to  the  municipal  regulations  of  that  State.  It 
might,  with  equal  propriety,  be  claimed  that,  because  the  streets  of  the 
city  of  New  York  are  common  highways,  the  State  of  New  Jersey  has 
the  right  to  issue  licenses  to  her  citizens  as  drivers  of  hackney-coaches. 
The  right  of  enjoying  the  highway  for  the  purposes  of  navigation  is 
far  different  from  the  exercise  of  municipal  authority  over  such  highway; 
nor  can  such  municipal  authority  be  exercised  conjointly  by  two  States, 
especially  at  this  port. 

The  quarantine  or  health  laws  of  New  York  form  an  important  part 
of  her  legislation:  the  importance  of  it  to  the  w^elfare  of  her  citizens,  and 
the  prosperity  of  the  State,  is  too  well  known  to  need  comment.  In 
the  execution  of  those  laws,  the  aid  of  her  pilots  is  constantly  demanded, 
under  severe  penalties,  in  hailing  vessels  approaching  her  ports,  and  ad- 
monishing them  of  the  requirements  of  those  laws.  How  stands  the 
collision  of  jurisdiction  on  this  subject?  What  right  has  this  State  to 
impose  upon  the  pilots  of  New  Jersey  the  performance  of  the  same  du- 
ties which  are  enjoined  in  every  statute  to  be  observed  by  her  own 
pilots?  Congress  has  not  confided  to  New  York  jurisdiction  over  the 
l^ilots  of  New  Jersey.  There  is  no  guarantee  that  New  Jersey  may  find 
it  proper  or  expedient  to  notice  this  measure  of  precaution  ;  it  is  not  now 
a  duty  in  her  present  statute  establishing  a  jiilot  system.  This  is  the 
practical  etfect  of  the  act  of  Congress. 

It  is  repeated,  that  Congress  has  the  right  to  commit  this  wrong  di- 
rectly, by  appointing  her  own  officers,  as  a  regulation  of  commerce,  but 


[15] 


22 


may  not  indirectly,  by  merging  the  jurisdiction  of  both  States  in  each 
other. 

The  municipal  jurisdiction  of  the  State  of  New  Jersey  thus  exercised, 
is  entirely  repugnant  to  the  second  title  of  the  Revised  Statutes,  treating 
on  "  the  sovereignty  and  jurisdiction  of  New  York.'-*  That  tide  declares 
that  "  the  sovereignty  of  this  State  extends  to  all  places  within  the  boun- 
daries thereof,  &c.,  &c.;  but  the  extent  of  such  jurisdiction  over  places 
that  have  been  or  may  be  ceded  to  the  United  States  shall  be  quahfied 
by  the  terms  of  such  cession."  The  second  section  declares  that  "  it 
shall  be  the  duty  of  her  governor,  and  of  all  subordinate  officers  of  this 
State,  to  maintain  its  sovereignty  and  jurisdiction." 

It  is,  in  conclusion,  respectfully  submitted  that  Congress  has  author- 
ized an  invasion  of  the  sovereignty  of  New  York  by  New  Jersey,  through 
hasty  and  ill-advised  legislation.  It  is  a  usurpation  of  authority  not  to 
be  submitted  to — inconsistent  with  the  dignity  of  the  State — and,  if  ac- 
quiesced in,  may  soon  be  followed  by  other,  and,  if  possible,  more  fla- 
grant encroachments.  The  laws  of  this  State  have  jealously  guarded  her 
integrity,  in  making  it  the  duty  of  her  officers  "  to  maintain  and  defend 
its  sovereignty  and  jurisdiction."  As  citizens  of  the  State,  we  claim  to 
be  protected  in  our  rights  thus  trampled  under  foot,  and  confidently  hope 
that  measures  may  be  taken  to  secure  to  us  the  uninterrupted  enjoyment 
of  our  franchise,  and  efl'ectually  to  check  the  pretensions  of  a  neighboring 
State,  sustained  though  she  be  by  the  sanction  of  Congress.  In  vain 
have  we  sought  redress  at  the  hands  of  those  who  inflicted  the  wrong, 
but  now  confidently  believe  that  the  subject  is  so  presented  as  to  icquire 
the  vindication  of  the  supremacy  of  the  State,  and  involves  a  more  se- 
rious question  than  the  protection  of  the  humble  pilot.  Establish  our 
rights,  and  our  duty  will  follow  j  but  "  niisera  servitus  est  ubi  jus  est 
aut  vagum  aut  incognitum." 

Respectfully  submitted. 


PETITION  OF  THE  PILOTS  OF  NEW  YORK,  BY  WAY  OF  SANDY  HOOK. 
To  the  Legislature  of  the  State  of  New  York, 

The  memorial  of  the  pilots  of  the  port  of  New  York,  by  the  Avay  of 
Sandy  Hook, 

RESPECTFULLY  REPRESENTS 

That  they  have  been  duly  licensed,  in  pursuance  of  the  provisions  of 
the  laws  of  this  State,  to  pilot  vessels  to  and  from  the  port  of  New  York, 
by  the  way  of  Sandy  Hook. 

That,  in  faith  of  the  protection  of  those  laws,  they  have  embarked  their 
fortunes  in  the  purchase,  building,  and  equipment  of  pilot-boats  necessaiy 
and  proper  to  the  efficient  and  useful  discharge  of  the  appropriate  duties 
of  their  office. 

That,  on  the  4th  of  March,  1837,  Congress  passed  an  act  entitled  "An 
act  concerning  pilots,"  in  the  following  words :  "  Be  it  enacted  that  it 
shall  and  may  be  lawful  for  the  master  and_  commander  of  any  vessel 
coming  into  or  going  out  of  any  port  situate '  upon  waters  which  are  the 


23 


[15] 


boundary  between  two  States,  to  employ  any  pilot  duly  licensed  or  au- 
thorized by  the  laws  of  either  of  the  States  bounded  on  the  said  waters 
to  pilot  any  vessel  to  or  from  said  port;  any  law,  usage,  or  custom,  to  the 
contrary  notwithstanding." 

And  your  memorialists  further  show,  that,  under  and  by  virtue  of  the 
said  act,  and  under  and  by  virtue  of  an  act  of  the  State  of  New  Jersey 
entitled  "An  act  to  establish  and  regulate  pilots  for  the  ports  of  Jersey 
City,  Newark,  and  Perth  Amboy,  by  the  way  of  Sandy  Hook,"  passed  the 
8th  of  February,  1S37,  and  under  and  by  virtue  of  a  supplemental  act  of 
the  State  of  New  Jersey,  passed  the  13th  of  February,  1838,  the  pilots 
licensed  and  commissioned  by  the  State  of  New  Jersey  have  been  and 
now  are  engaged  in  piloting  vessels  to  and  from  the  city  of  New  York, 
and  the  city  of  Brooklyn,  and  Tompkinsville,  in  the  county  of  Rich- 
mond, by  the  way  of  Sandy  Hook,  on  waters  within  the  exclusive  terri- 
torial jurisdiction  of  the  State  of  New  York. 

And  your  memorialists  further  show,  that  such  actings  and  doings  of 
the  pilots  of  New  Jersey  are  in  absolute  derogation  of  the  rights  and  inter- 
ests of  your  memorialists,  guarantied  to  them  by  the  laws  of  the  State  of 
New  York,  and  in  manifest  violation  of  the  sovereignty  of  the  State  of 
New  York,  inasmuch  as  the  said  act  of  Congress  sanctions  and  author- 
izes the  municipal  authorities  of  the  State  of  New  Jersey  to  exercise  the 
sovereign  power  and  authority  of  that  State  within  the  territorial  confines 
of  the  State  of  New  York. 

Your  memorialists,  therefore,  humbly  pray  that  your  honorable  body 
will  adopt  such  measures  as  may  seem  meet  and  proper  to  try  and  deter- 
mine whether  the  aforesaid  act  of  Congress  does  or  does  not  transcend 
the  legislative  power  of  the  federal  government,  and  whether  the  acts  ex- 
ercised under  its  sanction,  and  under  the  authority  of  the  laws  of  the 
State  of  New  Jersey  by  the  citizens  of  that  State,  are  or  are  not  in  violation 
of  the  sovereignty  of  the  State  of  New  York,  and  in  contempt  of  her  laws. 

And  your  memorialists  will  ever  pray,  (fee,  &c. 

James  Burger,  Richard  Blake, 

John  T.  Kelso,  J.  Livingston, 

John  Hyer,  Thomas  Vail, 

John  Maginn,  Henry  J.  BuUinger, 

John  Martino,  Isaac  S.  Vanderbilt, 

Jarvis  P.  Cahert,  Stephen  Martino, 

Corns.  Hope,  jr.,  Henry  M.  Wheeler, 

John  Henderson,  John  Fredell, 

James  H.  Smith,  Wm.  P.  Turnure, 

Robert  W.  Johnson,  Josiah  Johnson, 

John  L.  Turnure,  Maurice  D.  Weaver, 

Kuyler  E.  H.  Dibble,  John  Dean. 


Avery  Architectural  and  Fine  Arts  Library 
Gift  of  Seymour  B.  Durst  Old  York  Library 


